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Detainees Lose Bid For Release

Ruling Keeps 7 in Guantanamo Prison

By Charles Lane and John Mintz
Washington Post Staff Writers
Thursday, January 20, 2005; Page A03

A federal judge in Washington yesterday refused to order the release of seven detainees at the U.S. prison for suspected terrorists at Guantanamo Bay, Cuba, agreeing with the Bush administration that their bid for freedom was supported by "no viable legal theory."

In a 34-page opinion, U.S. District Judge Richard J. Leon said that Congress has granted President Bush the authority to detain foreign enemy combatants outside the United States for the duration of the war against al Qaeda and the Taliban, and that the courts have little power to review the conditions under which such prisoners are held.


A soldier walks the fence line at Camp Delta at Guantanamo Bay naval base, Cuba. U.S. District Judge Richard J. Leon ruled against seven prisoners there. (Mark Wilson -- Getty Images)


"While a state of war does not give the President a 'blank check,' " Leon wrote, "and the courts must have some role when individual liberty is at stake, any role must be limited when, as here, there is an ongoing armed conflict and the individuals challenging their detention are non-resident aliens."

Leon's decision was the first district court interpretation of the Supreme Court's ruling last year in Rasul v. Bush, which affirmed that the Guantanamo detainees, who number about 550, have the right to ask federal judges to release them through a writ of habeas corpus.

The Supreme Court left it up to the lower courts to decide whether to grant the writ in any given case. The Bush administration had been urging district judges in Washington to interpret the Rasul case as narrowly as possible.

The ruling was a major victory for the administration as it faces renewed criticism over alleged abuses in the Guantanamo Bay prison and other U.S. detention facilities. Some of those questions have been aimed at Attorney General-designate Alberto R. Gonzales because of his role in developing administration policy on interrogating detainees. Others have arisen because of newly released FBI memos in which agents reported alleged abuse of prisoners at Guantanamo Bay.

Lawyers for more than 67 detainees have filed a total of 13 petitions for habeas corpus in the U.S. District Court in Washington, telling the six judges who are hearing the cases that detention at Guantanamo violates detainees' rights under the U.S. Constitution, federal statutes and international treaties.

The case decided yesterday was filed by six Algerians captured by U.S. forces in Bosnia and taken to Guantanamo Bay, as well as one French citizen captured in Pakistan.

Another case, filed on behalf of a different set of 10 Guantanamo Bay detainees but involving many of the same legal questions, is pending before U.S. District Judge Joyce Hens Green. In a recent hearing, she expressed skepticism about some arguments made by government lawyers.

But Leon, who was appointed to the court by Bush in 2002, ruled that neither the Constitution nor federal law nor any treaty confers rights on the detainees that they can enforce in court.

"[T]o the extent these non-resident detainees have rights, they are subject to both the military review process already in place and the laws Congress has passed defining the appropriate scope of military conduct toward these detainees," Leon wrote.

Congress's Sept 18, 2001, resolution authorizing Bush to use "all necessary and appropriate force" against al Qaeda and the Taliban applies broadly, Leon ruled, and unless Congress adopts legislation limiting the president's powers, there is nothing the courts can do.

The detainees are entitled only to the legal process that the executive branch gives them, Leon noted. The Combatant Status Review Tribunals set up by the administration after the Supreme Court's rulings "provide each petitioner with much of the same process afforded by Article 5 of the Geneva Conventions," he wrote.

He acknowledged that the detainees allege they have been mistreated in Guantanamo Bay, but remarked in a footnote that "safeguards and mechanisms are in place to prevent such conduct and, if it occurs, to ensure that it is punished." The Jan. 14 conviction of Army Reserve Spec. Charles A. Graner Jr. for mistreating Iraqi prisoners at Abu Ghraib prison proves the point, Leon noted.

Supporters of the detainees' case expressed dismay at Leon's ruling and said that it will probably be overturned on appeal.

Leon effectively said that "the Supreme Court majority said you can come in the courthouse door, but you don't have any rights once you're inside," said Eugene Fidell, president of the National Institute for Military Justice. "I don't think that's what happened in Rasul. It's clear these detainees enjoy some substantive rights, besides entering the courthouse and dropping some papers on the clerk's desk."

But Douglas W. Kmiec, a former Reagan administration Justice Department official who teaches constitutional law at Pepperdine University, called Leon's ruling "a faithful application of existing precedent.

"It is also not an unreasoned outcome," Kmiec said in an e-mail, "since the military has acted responsibly in conducting status review determinations, and permitted the release of a good number of detainees, even at the risk -- and unfortunately the known actuality -- of enemy detainees returning to battle against us."


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